PROJECT 42 PTY LTD (Migration)

This matter concerned an application by Project 42 Pty Ltd for approval of a nomination for a Temporary Skill Shortage visa (Subclass 482). The nominated occupation was Chief Executive or Managing Director (ANZSCO 111111). The Administrative Appeals Tribunal was required to determine whether the nominated occupation was a "specified occupation" under the Migration Regulations 1994, whether the nominated position was "genuine," and whether Project 42 had complied with labour market testing conditions.

The Tribunal considered whether the nominated occupation and its ANZSCO code corresponded to an occupation specified in the relevant legislative instrument in force at the time of nomination, specifically the Migration (IMMI 18/048: Specification of Occupations – Subclass 482 Visa) Instrument 2018. It also examined the meaning of "nominated annual earnings" and whether the position was "genuine" as required by sub-regulation 2.72(10)(a). The Tribunal also had to assess compliance with labour market testing obligations under section 140GBA of the Migration Act 1958, including whether these obligations were inconsistent with Australia's international trade obligations under the General Agreement on Trade in Services (GATS).

Deputy President J.L Redfern PSM found that Project 42 had provided sufficient evidence to satisfy the requirements of regulation 2.72 of the Migration Regulations 1994. The Tribunal accepted that the nominated occupation was a specified occupation and that the position was genuine, noting that Project 42 was a continuing business that had operated since early 2018 and had generated significant revenue. The Tribunal was satisfied with the evidence presented regarding the nominated annual earnings and the compliance with labour market testing.

Consequently, the Tribunal set aside the decision not to approve the nomination and substituted a decision that the nomination be approved.